[Editor's note: This story appears in the June issue of Central City Extra, our partner newspaper in the Tenderloin. You can read the full version online via PDF here.]
In what are among the first prosecutions anywhere for the unlawful sale of e-cigarettes — a new delivery system for nicotine especially popular with kids — eight central city retailers are among the 15 busted so far in S.F. police sting operations targeting sales to minors.
Using underage decoys last fall at the urging of the department of Public Health’s Tobacco Free Project, police tested 80 retailers’ compliance with a city ordinance that extends regulations against the sale of tobacco to minors to include e-cigarettes, which previously had enjoyed relative immunity from laws that were enacted before “vaping” came along. the targeted merchants were selected at random by a city contractor from DPH's constantly updating list of tobacco retailers — as of April, there were 924 in the city, Derek Smith, health educator at the Tobacco Free Project, said.
Fifteen retailers — nearly 1 in 5 of those checked — were cited for selling to minors. In the Tenderloin the four busted were: New Princess Market (500 Eddy), Tobacco Barn (733 Polk) and Woerner’s Liquor and Salem Grocery, both in the 900 block of Geary.
In SoMa, Rite-By Grocery (22 Sixth St.), City Wine & Spirits (805 Howard) and the Shell and Chevron stations in the 1200 block of Harrison also were cited.
“I tell the industry, ‘We’re not trying to trick you,’” SFPD Lt. Dave Falzon told The Extra. “We don’t use giant kids or kids in nightclub attire. They never lie. They use lawful IDs or have no ID at all. If the person asks their age, they don’t lie.”
Falzon, who said he initiated compliance operations more than a decade ago, said that when the police are checking compliance with alcohol regulations, the decoys are older, but for tobacco, the typical age is 15 or 16. Many are the children of other officers, he said, or came to the program from high schools via their interest in law enforcement or criminology. They wear body wires and an undercover officer is present to make the citation should a violation occur.
The citation process is twofold: the store clerk who sells to a minor is issued a misdemeanor ticket, which can be adjudicated in community court, Falzon said. But the retailer faces the suspension of its tobacco retail license, typically for 20 days.
That part of the process is handled by the city Environmental Health Agency, a division of Public Health. Retailers can contest their citations at an Environmental Health director’s hearing, before Dr. Tomas Aragon, who is the director of the Population and Health division of DPH and also health officer of San Francisco — something like being the city’s surgeon general.
Should the retailers object to Aragon’s findings, they can take their case to the Board of Appeals. But typically, Tobacco Free’s Smith said, “It’s a pretty clear case,” and most retailers choose not to fight their citation.
“I have not heard of anyone else doing this enforcement,” Smith told The Extra. “I’m not aware of another community that has worked with the local police or sheriff’s department to do a decoy operation.”
Although The Extra found that 42 states have regulations barring the sale of e-cigarettes to minors, the only other enforcement action we found was a single citation issued in Queensland, Australia, where one retailer was prosecuted for selling a vaporizer.
In late March, the San Mateo County Sheriff and San Bruno, South San Francisco and Daly City Police conducted a sting on 187 merchants, citing, but not prosecuting, 19 for selling tobacco to a minor. Two were e-cigarette cases, the first such cases in the county, where the potential penalty is a $200 fine.
Of the 15 San Francisco retailers cited last year for e-cigarette violations, Rite-By appealed its license suspension on May 6 and was denied, as was a store on the 1800 block of Divisadero Street a week later. Five more are mulling their options following a director’s hearing, and five more have yet to have their day before aragon.
Aragon has the authority to set a 90- day suspension at most, but has yet to do so, instead opting for 20-day sentences, during which the retailer must take all tobacco products off its shelves. the dPh does its own compliance inspections, Smith said.
June Weintraub, an environmental health program manager, said that four cited retailers had volunteered at director’s hearings to quit selling e-cigarettes, including New Princess, Woerner’s and Salem in the TL.
Smith said DPH had conducted two surveys of retailers last year and found that the number of retailers selling vaping products grew from 357 in January to 458 by mid-August.
The rising popularity of e-cigarettes, which allow users to get a nicotine fix without actually burning tobacco — instead, a battery-operated device ignites a nicotine-laced liquid — has pumped new millions into the always resourceful tobacco industry, and presented new challenges for those seeking to reduce tobacco’s toll on our health.
“The reason the citations are new,” Smith said, “is because the law is new.” Last April, San Francisco adopted its Health Code Article 19N, which stipulates that e-cigarettes be treated just like traditional cigarettes in the eyes of the law.